"[T]HE[Y] DID NOT READ IN THE SEALED BOOK":

QUMRAN HALAKHIC REVOLUTION AND

THE EMERGENCE OF TORAH STUDY IN
SECOND TEMPLE JUDAISM*

ADIEL SGHREMER
Bar-Ilan University

Back in 1984, Prof. Yehuda Liebes of the Hebrew University sought

to shed light on the twentieth-century ultra-orthodox Jewish com-
munity and its ideology by drawing parallels between some of its
writings and those of the Dead Sea sect.1 In the present paper I
wish to follow a similar path, though in the opposite direction: in
order to explain a certain aspect of the Qumranic revolution and
its historical consequences, I shall start by drawing attention to an
interesting (perhaps even an important) development in orthodox
Judaism of our own day.

In a much discussed paper published a few years ago, Haym Solo-

veitchik pointed out that orthodox Jewry of the past generation
underwent a shift in its mode of religiosity. While in the past ortho-
dox Jews used to anchor their religious praxis in the living tradition
of their fathers and forefathers, in the last generation a new ten-
dency has arisen: orthodox Jews tend to base their religious praxis
on the halakhic rulings written in authoritative and canonized2 texts
of Jewish law.3

* This paper was written while I was a fellow at the Institute for Advanced
Jewish Studies of the Shalom Hartman Institute in Jerusalem. I wish to thank my
colleagues, M. Halbertal, S. Naeh, A. Shemesh, and D. Yinon, with whom I dis-
cussed several of its aspects, for their open-minded response to some of my ideas,
as well as for their important critical comments.
1
See Y. Liebes, "The Ultra-Orthodox Community and the Dead Sea Sect,"
Jerusalem Studies in Jewish Thought 3 (1982): 137-52 (Hebrew).
2
On the connection between canonization and authority in Jewish culture see
M. Halbertal, People of the Book: Canon, Meaning, and Authority (Cambridge, Mass.:
Harvard University Press, 1997).
3
See H. Soloveitchik, "Rupture and Reconstruction: The Transformation of
106 ADIEL SGHREMER

This shift presents us with two modes of religiosity: the one, which
I would term 'tradition-based observance,' bases its religious praxis
on common and accepted custom, which, it is maintained, is the
way former generations used to observe the halakha. The justification
for such an approach is formulated in the simple argument "This is
the way we live," or "This is how it is customary among us." In
contrast to this stands what I would term a 'text-based observance.'
What characterizes this type of religiosity is its appeal to written—
therefore authoritative—texts, as the primary source from which one
should draw halakhic guidance.4
As Soloveitchik observes, the shift of authority to texts as the sole
source of authenticity may have far-reaching effects. Not only does
this shift contribute to the tendency of religious stringency and alter
the nature of religious performance; it also transforms the character

Contemporary Orthodoxy," Tradition 28 (1994): 64-130. An altered, less detailed,

form of that paper appeared in Accounting for Fundamentalism., ed. M. E. Marty and
R. Scott Appleby (Chicago: Chicago University Press, 1994), 197-235, but refer-
ences will be given to the earlier, more detailed, version. See also M. Friedman,
"Life Tradition and Book Tradition in the Development of Ultraorthodox Judaism,"
in Judaism from Within and from Without: Anthropological Studies, ed. H. E. Goldberg
(Albany: State University of New York Press, 1987), 235-55.
Soloveitchik also attempted to explain this shift. Since, however, modern Jewish
society is not the focus of my paper, I shall not attempt to discuss his interpreta-
tion, which is open to debate (see, for example, the responses of H. Goldberg,
"Responding to 'Rupture and Reconstruction,'" Tradition 31 [1997]: 31-40;
M. Steiner, "The Transformation of Contemporary Orthodoxy: Another View," Tradition
31 [1997]: 41-49; I. Chavel, "On Haym Soloveitchik's 'Rupture and Reconstruction':
A Response," Torah U-Madda Journal 7 [1997]: 122-36). Rather, I would like to
draw attention to several insights that emerge from his study that might be rele-
vant to our understanding of the 'Qumranic revolution' and one of its major con-
sequences, as I shall try to explain below.
4
M. Kister, in a recently published paper, suggests that the Jewish marriage for-
mula ("According to the law of Moses and Israel") is a combina-
tion of two distinct formulae: (1) ("According to the law of [the book
of] Moses"), and (2) ("According to the custom of the Jews"). See
M. Kister, " in Atara L'Haim: Studies
in the Talmud and Medieval Rabbinic Literature in Honor of Professor Haim Zalman Dimitrovsky,
ed. D. Boyarin et al. (Jerusalem: Magnes Press, 2000), 202-8 (Hebrew). These two
formulae are to be found, as Kister correctly notes, in ancient sources of the Second
Temple period: Tob. 6:13 and 7:12, on the one hand, and a marriage contract
from 176 BCE found in Maresha (see E. Eshel and A. Kloner, "An Aramaic
Ostracon of an Edomite Marriage Contract from Maresha, Dated 176 BCE," IEJ
46 [1996]: 1-22), on the other. Assuming that Kister's reconstruction is correct,
one may think of these two diverging formulae as echoing the two modes of reli-
giosity with which we are dealing. It is of some significance to note that most of
the evidence attesting to the first formula (which emphasizes the 'Book') comes from
sources written in the Jewish Diaspora. Regarding the relevance of this fact, see
D. R. Schwartz's short notice in his review of Schroder, in SCI 17 (1998): 250.
 "[T]HE[Y] DID NOT READ IN THE SEALED BOOK" 107

and purpose of religious education and redistributes political power.5

For if religion is now text-based, it must be transmitted to the next
generation by institutionalized education. In such a state of affairs,
the influence of teachers and educators increases dramatically, espe-
cially that of the scholar, the one most deeply versed in the sacred
texts. This in turn entails a shift in political power: authority is now
vested in the Sages, masters of the canonized and sacred halakhic texts.6
Since the text-based mode of religiosity draws knowledge from
books, it is only natural that it encourages the study of books.
Consequently, learning groups of halakha now flourish as never
before.7 This, in turn, produces a vast literary activity. Indeed, as
Soloveitchik put it, "One of the most striking phenomena of the con-
temporary community is the explosion of halakhic works on practi-
cal observance."8
All these characteristics of the shift from 'tradition' to the 'book,'
as discussed by Soloveitchik, are highly significant for our under-
standing of Qumran and its reformative revolution, as we shall imme-
diately see. Yet there is another aspect to which I would also like
to draw attention. These two types of religiosity, where 'text-based
observance' is of a reformative and revolutionary character vis-a-vis
'tradition-based observance,' are known to students of religion from
other religions and periods (e.g., the seventh-century Karaite move-
ment in Babylon or the sixteenth-century Protestant Reformation).
From a comparative perspective we may say that as a rule the 'text-
based' type of religiosity is a reaction to the 'tradition-based' one.
Thus, by its very nature, the 'text-based' mode of religiosity is sec-
ondary and innovative.9
This innovation is a process that reinforces itself. Once one becomes
aware of the religious demands as presented by the written sacred
text, it is difficult not to sense the discrepancy between these demands
and one's traditional practice, which intrinsically is almost always
somewhat remote from the fixed law. The awareness of this discrepancy

5
Soloveitchik, "Rupture and Reconstruction," 87.
6
Soloveitchik, "Rupture and Reconstruction," 94. See also Halbertal, People of
the Book, 6, 129.
7
Soloveitchik, "Rupture and Reconstruction," 83.
8
Soloveitchik, "Rupture and Reconstruction," 68.
9
The importance of this observation for our understanding of Second Temple
Judaism (especially the radical character of sectarian ideology vis-a-vis Pharisaic tra-
ditionalism) will be discussed below.
108 ADIEL SCHREMER

has the potential to generate feelings of guilt that, in turn, strengthen

the tendency to comply with the strict demands of religious law as
embodied in the written authoritative text. The consequence of such
a process is a growing denial of the living tradition as a legitimate
mode of the religious way of life.
The sense of guilt accompanying the "return to the text" is indeed
found in various cases where this process has taken place. An inter-
esting example, described at some length by Israel Ta-Shema, is the
confrontation of eleventh-century Ashkenazic Jewry with the Babylonian
Talmud and its halakhic traditions, which had been recently intro-
duced into Ashkenaz.10 Another famous example is King Josiah's
reaction to the discovery of the "Book of the Torah" (2 Kings 23).
A more relevant example is Ezra's reading of the Book of the Torah,
as described in Nehemiah. In Neh. 8:1-8, Ezra reads the Book of
the Torah before the assembly. Then Neh. 8:13-14 states "On the
second day the heads of the fathers' houses of all the people . . .
came together to Ezra the scribe in order to study the words of the
law, and they found it written in the law that the Lord had com-
manded by Moses that. ..." In other words, according to these verses,
this book was hitherto unknown!11 The congregation started to mourn
and weep ("For all the people wept when they heard the words of
the law," Neh. 8:9) because they realized that until then they had
not acted in accordance with the demands of the divine law.12

II

At this point I would like to turn to Qumran. The sense of guilt

arising from not knowing the correct path, caused by consciousness
of the discrepancy between actual practice and the demands of the
Torah,13 is described by the author of the Damascus Document:

10
See I. Ta-Shema, "Law, Custom, and Tradition in Early Jewish Germany:
Tentative Reflections," Sidra 3 (1987): 85-161 (= Early Franco-German Ritual and Custom
[Jerusalem: Magnes Press, 1992], 13-105) (Hebrew).
11
See J. M. Myers, Ezra, Nehemiah, AB 14 (Garden City, N.Y.: Doubleday, 1983),
154; H. G. M. Williamson, Ezra, Nehemiah, Word Biblical Commentary 16 (Waco,
Tx.: Word, 1985), 298. Cf. M. Fishbane, Biblical Interpretation in Ancient Israel (Oxford:
Oxford University Press, 1985), 107-9.
12
See Williamson, Ezra, Nehemiah.
13
See M. Kister, "Concerning the History of the Essenes," Tarbiz 56 (1986):
1—19 (Hebrew); M. Kister, "Some Aspects of Qumranic Halakhah," in The Madrid
Qumran Congress: Proceedings of the International Congress on the Dead Sea Scrolls, Madrid,
 "[T]HE[Y] DID NOT READ IN THE SEALED BOOK" 109

And they understood their iniquity and knew that they were guilty
men. And they were as blind as those who grope for a way for twenty
years. But God considered their works, that they had sought Him
wholeheartedly, and He raised up for them a Teacher of Righteousness
to guide them in the way of His heart (CD 1:10-13).14
How this Teacher of Righteousness was to lead the group in the way
of God is not stated here. Nevertheless, a few columns later, when
trying to explain and justify King David's polygynous marriage,15
which, according to the author, was not only in contrast to the foun-
dation of Creation but also in contrast to the explicit demand of the
Torah ("He shall not multiply wives," Deut. 17:17), the author argues

David— he did not read in the sealed book which was in the ark, for
it was not opened in Israel since the day of the death of Eleazar and
Joshua and the elders . . . until Zadok arose (CD 5:2-5).
In other words, David did not act in accordance with the law sim-
ply because he was ignorant of the law; the Book of the Torah was
sealed in the ark and therefore inaccessible to him.
Who is "Zadok"? This question is difficult to answer. Although
many scholars identify him with a biblical figure, it seems to me

18-21 March 1991, ed. J. Trebolle Barrera and L. Vegas Montaner, STDJ 11
(Leiden: E. J. Brill, 1992), 571-76.
14
I follow the translation of J. M. Baumgarten and D. R. Schwartz, "Damascus
Document," in The Dead Sea Scrolls: Hebrew, Aramaic, and Greek Texts with English
Translations, vol. 2, Damascus Document, War Scroll, and Related Documents, ed. J. H.
Charlesworth (Tubingen: J. C. B. Mohr [Paul Siebeck] and Louisville: John Knox
Press, 1996). A similar theme might be reflected in 1 Enoch 90:6-17 and Jub.
23:16-20; see Kister, "Concerning the History of the Essenes," 1-15.
15
Though it is not explicitly stated here that David is accused of marrying many
women, and though one could think of an accusation for marrying two sisters,
Michal and Merav (see t. Sot. 11:18 [ed. Lieberman, 224]), it is clear from the con-
text that polygynous marriage is the issue under discussion. See my "Qumran
Polemic on Marital Law: CD 4:20-5:11 and Its Social Background," in The Damascus
Document: A Centennial of Discovery. Proceedings of the Third International Symposium of the
Orion Center for the Study of the Dead Sea Scrolls and Associated Literature, 4-8 February
1998, ed. J. M. Baumgarten, E. G. Chazon, and A. Pinnick; STDJ 34 (Leiden:
Brill, 1999), 160 n. 26.
110 ADIEL SCHREMER

plausible to identify him with the founder of the sect (or the Teacher
of Righteousness).16 Accordingly, one is inclined to conclude that the
author of the Damascus Document argues that one of the sect's inno-
vations was its rediscovery of the book and its appeal to the book
as a source of halakhic guidance.
In this light we may fully appreciate the vow
("to return to the Torah of Moses") that the newcomer to the com-
munity had to take, according to the Manual of Discipline (1QS 5:7-10).17
The members of the sect are expected to devote themselves to the
reading of the book: ("to read in the book
[of the Torah] and to seek [guidance regarding] the law," 1QS 6:7).
In fact, the author of 4QMMT expresses the expectation that his
opponent will do likewise: , that is,

16
On the identification of Zadok with the founder of the sect, see E. Cothenet,
"Le Document de Damas," in Les Textes de Qumran, ed. J. Carmignac, E. Cothenet, and
H. Lignee (Paris: Letouzey et Ane, 1963), 164 n. 5; J. Liver, "The 'Sons of Zadok
the Priest' in the Dead Sea Sect," Eretz-Isrtul 8 (1967): 74 (Hebrew); Y. Yadin,
The Temple Scroll (Jerusalem: Israel Exploration Society, Institute of Archaeology,
Hebrew University of Jerusalem, Shrine of the Book, 1983), 1.394-95; B. Z. Wacholder,
The Dawn of Qumran: The Sectarian Torah and the Teacher of Righteousness (Cincinnati:
Hebrew Union College Press, 1983), 112-19. This view was expressed also by Prof.
Joseph Baumgarten at the Third International Orion Symposium, "The Damascus
Document: A Centennial of Discovery," held 4-8 February 1998, at the Orion
Center for the Dead Sea Scrolls and Associated Literature.
For the opposing view, that Zadok is a biblical figure from the Davidic period
or a bit later, see S. Schechter, Fragments of a Zadokite Work (Cambridge: Cambridge
University Press, 1910), XXI; L. Ginzberg, An Unknown Jewish Sect (New York: Jewish
Theological Seminary of America, 1976), 21; J. Maier, Die Texte vom Toten Meer, Band
II: Anmerkungen (Munchen and Basel: Ernst Reinhardt, 1960), 48; A. Dupont-Sommer,
Die essenischen Schriften vom Toten Meer (Tubingen: J. C. B. Mohr, 1960), 141 n. 8;
J. C. Vanderkam, "Zadok and the SPR HTWRH HHTWM in Dam. Doc. V, 2-5,"
RevQ 11 (1984): 561-70; L. H. Schiffman, Law, Custom, and Messianism in the Dead
Sea Sect (Jerusalem: Zalman Shazar Center for Jewish History, 1993), 53 (Hebrew).
Although I prefer the first option it should be stressed that this controversy need
not undermine my main argument, since the aspect that I try to emphasize is the
sect's historical view (i.e., rupture in tradition due to lack of knowledge of the Torah
and its rediscovery), not its accuracy. So even if one prefers to identify Zadok with
a biblical figure, the sect's concept is still one of rupture and revelation of the book.
This concept, I shall argue, reflects the sect's own historical perception. See also M. D.
Herr, "Continuum in the Chain of Torah Transmission," Zion 44 (1979): 51-55
(Hebrew). Cf. Kister, "Concerning the History of the Essenes," 5 n. 20, 8 n. 32.
17
See also CD 16:1-2: ("to return to the
Torah of Moses, for in it everything is specified [in detail]"), along with A. Rosenthal,
in Mehqerei Talmud, vol. 2, Talmudic
Studies Dedicated to the Memory of Professor Eliezer Shimshon Rosenthal, ed. M. Bar-Asher
and D. Rosenthal (Jerusalem: Magnes Press, 1993), 451 n. 12 (Hebrew).
 "[T]HE[Y] DID NOT READ IN THE SEALED BOOK" 111

in Qimron's translation: "we have written to you so that you may

study (carefully) the book of Moses" (C 73).18
Moreover, according to the Temple Scroll 56:3—4 halakhic decisions
should be drawn on the basis of this source exclusively:

("And you shall do according to the instructions which

they will tell you from the book of the Torah and will tell you
truly").19 It is appropriate to recall here Yadin's persuasive observa-
tion, that the changes made here by the author of the Temple Scroll
to the Masoretic text of Deut. 17:8—13 (especially the addition of
the words were aimed at emphasizing the importance
of establishing halakha on the written text of the Torah alone, thus
excluding the 'tradition of the fathers' as a legitimate halakhic source.20
All this was accompanied by a clear tendency to religious strin-
gency. The author of the Pesher on Psalms accuses the sect's oppo-
nents of choosing a worthless and easy way of religious life:
21
A similar accusation is expressed by the author of the Damascus
Document: that is, they chose the good life.22 The
tendency to religious stringency is clearly apparent in 4QMMT; as
Sussman observed, all the laws in this halakhic document display a
rigorous approach to the halakha.23

18
See E. Qimron and J. Strugnell, eds., Qumran Cave 4.V. Miqsat Ma'ase Ha-
Torah, DJD 10 (Oxford: Clarendon Press, 1994), 58. "The expression denotes
here careful study of a written text" (DJD 10.59, note to line 10 [emphasis mine]).
Cf. M. J. Bernstein, "The Employment and Interpretation of Scripture in 4QMMT:
Preliminary Observations," in Reading 4QMMT: New Perspectives on Qumran Law and
History, ed. J. Kampen and M. J. Bernstein, SBLSym 2 (Atlanta: Scholars Press,
1996), 49-50.
19
See Y. Yadin, The Temple Scroll, 251, notes to lines 3—4; E. Qimron, The Temple
Scroll: A Critical Edition with Extensive Reconstructions (Beer Sheva: Ben Gurion University
of the Negev Press and Jerusalem: Israel Exploration Society, 1996), 81.
20
See Yadin, Temple Scroll; M. Kister, "Marginalia Qumranica," Tarbiz 57 (1988):
315-16 (Hebrew).
21
See J. M. Allegro, ed., Qumran Cave 4.I (4Q158-4Q186) (DJD 5; Oxford:
Clarendon Press, 1968), 43; D. Flusser, "Pharisees, Sadducees, and Essenes in Pesher
Nahum," in Essays in Jewish History and Philology in Memory of Gedaliahu Alon, ed.
M. Dorman, S. Safrai, and M. Stern (Tel Aviv: ha-Kibbutz ha-Meuchad, 1970), 160-61
(Hebrew).
22
See E. Eshel, "4Q477: The Rebukes by the Overseer," JJS 45 (1994): 118,
note to line 9.
23
See J. Sussman, "The History of the Halakha and the Dead Sea Scrolls:
Preliminary Observations on Miqsat Ma'ase Ha-Torah (4QMMT)," Tarbiz 59 (1990):
27, 30, 33-35, 64-65 (Hebrew).
112 ADIEL SCHREMER

We have seen Qumran's tendency to halakhic strictness and its

bibliocentricity, that is, the crucial role that Scripture plays as a
source for the sect's self-definition and its unique halakhic norms.
Consequently, we are not surprised that the Qumran community
placed intensive study of the Torah at the center of its religious
activities. According to the Manual of Discipline the sect established
sessions for the study of the Torah:

And where there are ten (members) there must not be lacking a man
who studies the Torah day and night, constantly, one relieving another.
And the Many shall keep watch together for a third of every night of
the year, to read the book and to seek [guidance regarding] the law . . .
(1QS 6:6-7).24
Yet, the description of the sect's history in the Damascus Document.,
quoted above, also testifies to the important role played by the 'teacher'
in that context.25 Indeed, "the scrolls are very clear about the pivotal
position of authoritative teachers in the history of the community."26
So, in summary we can clearly see that all these features of the
sect's ideology correspond to the main characteristics of the revolu-
tionary shift from 'tradition' to the 'book,' as analyzed by Soloveitchik:
the centrality of the book; the sense of guilt for not having known
it before; the denial of 'tradition' as a legitimate source for the
halakha; the tendency to halakhic stringency; the establishment of
study sessions; and the central role played by the 'teacher.' As for

24
My translation. Cf. S. D. Fraade, "Looking for Legal Midrash at Qumran,"
in Biblical Perspectives: Early Use and Interpretation of the Bible in Light of the Dead Sea
Scrolls. Proceedings of the First International Symposium of the Orion Center for the Study of the
Dead Sea Scrolls and Associated Literature, 12-14 May 1996, ed. M. E. Stone and E. G.
Chazon, STDJ 28 (Leiden: Brill, 1998), 66 and nn. 24-28.
25
Bibliography on the "Teacher [of Righteousness]" in the Scrolls is vast and
need not be cited here. For a recent survey see H. Ulfgard, "The Teacher of
Righteousness, the History of the Qumran Community, and Our Understanding of
the Jesus Movement: Texts, Theories and Trajectories," in Qumran between the Old
and the New Testament, ed. F. H. Cryer and T. L. Thompson, JSOTSup 290 (Sheffield:
Sheffield Academic Press, 1998), 310-46.
26
M. Fishbane, "Use, Authority and Interpretation of Mikra at Qumran," in
Mikra: Text, Translation, Reading, and Interpretation of the Hebrew Bible in Ancient Judaism
and Early Christianity, ed. M. J. Mulder, CRINT 2/1 (Assen and Maastricht: Van
Gorcum, 1988), 361.
 "[T]HE[Y] DID NOT READ IN THE SEALED BOOK" 113

the last characteristic of the religious shift noted by Soloveitchik, the

production of literary works, surely there is no need to remind any-
one of the sect's rich literary activity.

III

The correspondence between some of the major features of Qumranic

ideology and practice and those of modern Jewish orthodoxy, as
described above, has led me to think of the Qumran revolution
indeed as a reform, emphasizing the 'return to the written text.'27
This reform stood in contrast to a different mode of religiosity that
had been in existence at that time, that is, 'tradition-based observance,'
which emphasized paradosis ton pateron the tradition of the fathers.28
Admittedly, this might seem strange at first sight, for it is often
assumed that the Torah was a public document in the Second Temple
period, and that knowledge of its commandments was therefore a

27
I shall not attempt to discuss here the question of why this supposed reform
from 'tradition' to the 'book' took place. This question, though interesting and
important, is beyond the scope of the present study. For two different paths, see
D. R. Schwartz, "The Historical Background of the Judaean Desert Sect," in On
a Scroll of a Book: Articles on the Dead Sea Scrolls, ed. L. Mazor (Jerusalem: Magnes
Press, 1997), 27-39 (Hebrew), and Sussman, "History of the Halakha," 61-63, who
stress, from different perspectives, a social and ideological crisis (Sussman's scenario,
however, is different from the way in which I try to present the historical devel-
opment; see n. 56). A somewhat different, yet not necessarily contradictory, approach
is taken by A. I. Baumgarten, The Flourishing of Jewish Sects in the Maccabean Era: An
Interpretation, JSJSup 55 (Leiden: Brill, 1997), 114-36; A. I. Baumgarten, "Literacy and
the Polemic concerning Biblical Hermeneutics in the Second Temple Era," in Education
and History: Cultural and Political Contexts, ed. R. Feldhay and I. Etkes (Jerusalem:
Zalman Shazar Center for Jewish History, 1999), 33-45 (Hebrew), who emphasizes
the emergence of literacy as a prime factor underlying the rise of sects in Second
Temple Judaism. Since I would like to say something about the consequences of
this reform, I would emphasize for the moment its historicity, not its background.
28
This was a well-known characteristic of Pharisaic ideology. See Josephus, Ant.
13.297 (see S. Mason, Flavius Josephus on the Pharisees: A Composition-Critical Study
[Leiden: E. J. Brill, 1991], 230-40, for a detailed discussion of this text), 13.408,
17.41; Life 38.191; Mark 7:3. See also Josephus, Ant. 18.12. On the Pharisaic
paradosis in general, which, I think, is identical to the "tradition of the fathers,"
see A. I. Baumgarten, "The Pharisaic Paradosis" HTR 80 (1987): 63-77; Mason,
Flavius Josephus on the Pharisees, 288-93; B. Schroder, Die "Vaterlichen Gesetze": Flavius
Josephus als Vermittler von Halachah an Greichen und Romer, TSAJ 53 (Tubingen: J. C.
B. Mohr [Paul Siebeck], 1996); V. Gillet-Didier, "Paradosis: Flavius Josephe et la
fabrique de la tradition," REJ 158 (1999): 19-28. Most relevant to our discussion
is M. Goodman, "A Note on Josephus, the Pharisees and Ancestral Tradition," JJS
50 (1999): 17-20.
114 ADIEL SCHREMER

commonplace.29 Consequently, it is taken for granted that the study

of Torah was always a central aspect of ancient Judaism.30 One may
argue that it is unthinkable that there were times when the study of
the Torah was not prevalent among the people of Israel. It must
therefore be stressed that I am not arguing that the author of the
Damascus Document is necessarily correct when arguing that the book
of the Torah was actually unknown prior to its discovery by the

29
See Hecataeus of Abdera, Aegyptica, apud Diodorus Siculus, Bibliotheca Historica
xl.3.6 (M. Stern, Greek and Latin Authors on Jews and Judaism, vol. 1 [Jerusalem: Israel
Academy of Sciences and Humanities, 1974], 28; I am indebted to Prof. Albert
Baumgarten for this reference). Stern notes that "Hecataeus . . . reflects the actual
situation in Hellenistic Judaea" (Greek and Latin Authors, 31, note to par. 5). Philo
argues that all Jews are familiar with their laws because of their custom of read-
ing the Torah on the Sabbath (Hyp. 7.12-14).
A similar claim is made by Josephus in Apion 2.175—78; see A. Kasher, Josephus
Flavius, Against Apion: A New Hebrew Translation with Introduction and Commentary, vol. 1
(Jerusalem: Zalman Shazar Center for Jewish History, 1996), 182-84. Concerning
Apion 1.189, which is frequently understood as a reference to public reading of the
Torah, see J. Meleze-Modrzejewski, The Jews of Egypt: from Rameses II to Emperor
Hadrian, 2nd ed. (Princeton: Princeton University Press, 1997), 99-100. Baumgarten
noted, however, that not only is Josephus probably using Philo at this point (Philo
himself seems to have relied on an earlier source), but the claim itself is likely to be
an exaggeration. See A. I. Baumgarten, "The Torah as a Public Document in Judaism,"
Studies in Religion 14 (1985): 18-19; Baumgarten, The Flourishing of Jewish Sects, 120-21;
Baumgarten, "Literacy," 38-39. On the public reading of the Torah, see David
Goodblatt, "Judaean Nationalism in the Light of the Dead Sea Scrolls," in this vol-
ume, Historical Perspectives: From the Hasmoneans to Bar Kokhba in Light of the Dead Sea
Scrolls. Proceedings of the Fourth International Symposium of the Orion Center for the Study
of the Dead Sea Scrolls and Associated Literature, 27-31 January 1999, ed. D. Goodblatt,
A. Pinnick, and D. R. Schwartz, STDJ 37 (Leiden: Brill, 2001), 3-27.
30
See, for example, G. Vermes, "Bible and Midrash: Early Old Testament
Exegesis," in Post-Biblical Jewish Studies (Leiden: Brill, 1975), 59-91; E. Schurer, The
History of the Jewish People in the Age of Jesus Christ 175 EC-AD 135, vol. 2, rev. and
ed. G. Vermes et al. (Edinburgh: T&T Clark, 1979), 322-25; J. Blenkinsopp,
"Interpretation and the Tendency to Sectarianism: An Aspect of Second Temple
History," in Jewish and Christian Self-Definition, vol. 2, ed. E. P. Sanders, A. I.
Baumgarten, and A. Mendelson (London: SCM, 1981), 1-26; D. W. Halivni, "The
Early Period of Halakhic Midrash," Tradition 22 (1986): 37-58 (= Midrash, Mishnah,
and Gemara: The Jewish Predilection for Justified Law [Cambridge, Mass.: Harvard
University Press, 1986], 18-37); Fishbane, Biblical Interpretation, 91-280; J. L. Kugel,
The Bible As It Was (Cambridge, Mass.: Harvard University Press, 1997), 8-16. This
view is shared by virtually all scholars who have debated the question of what form
of Torah study came first: midrash or what is called, in this context, mishnah. See,
for example, J. Z. Lauterbach, "Midrash and Mishnah: A Study in the Early History
of the Halakah," JQR 5 (1915): 503-27; 6 (1915): 23-95; J. N. Epstein, Introduction
to Tannaitic Literature (Jerusalem: Magnes Press and Tel Aviv: Dvir, 1957), 501-15
(Hebrew); C. Albeck, Introduction to the Mishnah (Jerusalem: Bialik Institute and Tel
Aviv: Dvir, 1959), 40-48 (Hebrew); Halivni, "The Early Period of Halakhic Midrash,"
18—21, and many others. In all these discussions it is assumed that the study of
Torah was widespread; the only question posited concerns chronological precedence
and historical development of its divergent types.
 "[T]HE[Y] DID NOT READ IN THE SEALED BOOK" 115

sect.31 After all, acquaintance with the Bible, one may argue, is evi-
dent from the very existence of a Greek translation, the Septuagint,
written some hundred years after Ezra. My point is therefore not
that the book of the Torah was actually unknown, but that when
halakhic issues were raised, it was not customary to appeal to the
book of the Torah as the deciding factor.
One of Soloveitchik's remarks is especially enlightening in this con-
text. After all, he admits, the study of halakha has always been cen-
tral to traditional Judaism, so one may critically ask what is new
about the contemporary 'book revolution.' The point is, he replies,
that although Jews have always studied halakhic texts, the role these
texts played in everyday's life was, until recently, quite limited.32
Similarly, I am suggesting that with respect to halakha, at least,
Qumran's bibliocentricity was an innovation. Prior to that 'revolu-
tion' it was not customary to appeal to the written text of the Torah
in order to draw halakhic guidance from it.33

31
I believe this should not be completely ruled out, as we see from the stories
concerning Ezra (Nehemiah 8) and Josiah (2 Kings 23). In both cases the biblical
account assumes that prior to the finding of the book the people did not even know
of its existence, not to mention the precise details of the commandments it contained.
32
See Soloveitchik, "Rupture and Reconstruction," 65-66. That the study of
halakhah and halakhic works is not necessarily halakhically-oriented but may serve
other cultural purposes as well is demonstrated by S. C. Heilman, The People of the
Book: Drama, Fellowship, and Religion (Chicago: Chicago University Press, 1987).
33
According to Albeck, "In ancient days, when the Supreme Court existed, when
a [halakhic] question came before them, in a case on which they did not have any
tradition, certainly they expounded and discussed the words of the Torah, and
deduced from it alone the law"; C. Albeck, "The Halakhoth and the Derashoth" in
Alexander Marx Jubilee Volume, ed. S. Lieberman (New York: Jewish Theological
Seminary of America, 1950), Hebrew section, 1-8 (emphasis in the original). Most
of the evidence he produces, however, does not relate to the Second Temple period
but to the tannaitic period. The only two examples of evidence that relate to the
period prior to the destruction of the Temple, and therefore more relevant, are m.
San. 11:2 (concerning the Supreme Court in Jerusalem:
["this is what I have taught and this is what my col-
leagues have taught; this is how I have expounded [Scripture], and this is how my
colleagues have expounded"), and t. San. 9:1 (concerning the procedure of render-
ing a final decision by the Supreme Court in Jerusalem:

["and they would discuss the relevant [scriptural] paragraph all

night long; if he was [accused as] a murderer, they would study the [scriptural]
paragraph of [the law of] murderer; if he was [accused as] an adulterer, they would
study the [scriptural] paragraph of [the law of] adultery").
The crucial phrases in these two sources, however, are absent from the paral-
lels, as E. E. Urbach notes in his "The Drasha As a Basis of the Halakhah and
the Problem of the Soferim" Tarbiz 27 (1958): 180 n. 49 (= The World of the Sages
[Jerusalem: Magnes Press, 1988], 64 n. 49) (Hebrew); E. E. Urbach, The Halakha:
Its Sources and Development (Givatayim: Masada, 1986), 388-89 n. 49. Further, these
116 ADIEL SCHREMER

This can be shown in the first place by the very fact that there
is almost no reference to Scripture in the early halakhic dicta of the
Second Temple era. As Ephraim E. Urbach noted long ago, in all
the reports found in talmudic literature regarding halakhic decisions
and rulings given by authorities of the Second Temple era, prior to
Hillel and Shammai, one finds no reference to Scripture at all.34
These early rulings, without exception, contain no biblical proof-texts
as their foundation or justification. Moreover, in a recent paper,
Daniel Schwartz has shown that even in the sayings attributed to
Hillel (whom talmudic tradition records as the one who laid the
foundations for a systematic study of Scripture—that is, the seven
middot or exegetical principles for the study of Torah),35 reference to
Scripture and use of it as a justification for a halakhic position are
rarely to be found, if at all.36
In light of the central role that scriptural citations play in later
rabbinic discourse and in light of the rabbinic tendency to add cita-
tions to halakhic statements where these are lacking, the absence of
scriptural proof-texts in halakhic sayings attributed to authorities of
the Second Temple period is striking, to say the least, and undoubt-
edly calls for an explanation. Urbach has suggested that the fact that
early halakha, as it is known to us from rabbinic sources, is pre-
sented in the form of decrees, testimonies and traditions derived from
custom, but without reference to Scripture, indeed indicates that in
those days halakhic decisions were not derived from Scripture. Rather,

sources are, like most of the rabbinic material relating to this institution, idealised,
late, and anachronistic projections, and therefore cannot be used as evidence for
the Second Temple era. See D. Goodblatt, The Monarchic Principle: Studies in Jewish
Self-Government in Antiquity, TSAJ 38 (Tubingen: J.C.B. Mohr [Paul Siebeck], 1994),
77-130. Even if one were to accept these sources at face value, it should be stressed
that they contain no hint whatsoever as to the exact period to which they refer; it
may well be the case that they 'describe' a first century CE 'reality,' while I speak
of a much earlier era. It should be borne in mind that my thesis does not exclude,
of course, the simple possibility of historical development; the contrary is the truth.
34
See E. E. Urbach, "The Drasha," 166-82 (= The World of the Sages, 50-66);
Urbach, The Halakhah, 93-108; Halivni, Midrash, Mishnah, and Gemara, 19.
35
T. San. 7:11 (ed. Zuckermandel, 427); Sifra, Baraitha de-Rabbi Ishma'el, end
(L. Finkelstein, Sifra on Leviticus [New York: Jewish Theological Seminary of America,
1983] 9-10); ARN, Version A, 37 (ed. Schechter, 110). Cf. Schurer, History of the
Jewish People, 344.
36
See D. R. Schwartz, "Hillel and Scripture: From Authority to Exegesis," in
Hillel and Jesus: Comparative Studies of Two Major Religious Leaders, ed. J. H. Charlesworth
and L. L. Johns (Minneapolis: Fortress Press, 1997), 335-62.
 "[T]HE[Y] DID NOT READ IN THE SEALED BOOK" 1 17

institutional authority was their main source of legitimacy.37 This line

of thought has been adopted by other scholars as well.38
The context in which Urbach has dealt with this phenomenon
was the much debated question of which form of study of the unwrit-
ten law was prevalent and common prior to the rab-
binic period: midrash or, in this context, mishnah (i.e., fixed laws
without any reference to Scripture). This question, which can be traced
back to Maimonides and Nachmanides (as representatives of the oppos-
ing views), has occupied the minds of Jewish scholars for generations.
Urbach's contribution lay in his attempt to discuss it in a historical
manner and to argue for an evolution and a historical change.
I too wish to follow a similar path and to argue, with Urbach,
that in the period when these rulings were given, the appeal to
Scripture was simply uncommon. The context, however, into which
I put the matter is slightly different; I focus on the mode of reli-
giosity presented by the change. Therefore, I would stress not only
institutional authority but also the possibility that in halakhic matters,
arguments and justifications were drawn from the simple sense of the
matter under discussion and that any appeal, if necessary, was to the
paradosis tan pateron, the tradition of the fathers, not to textual evidence.39

IV

The minor role played by the text of the Torah in halakhic con-
texts in those remote days becomes more and more apparent as we
look closely at the earliest passages where reference to Scripture is
to be found: by and large their use of the biblical text is in a man-
ner very close to its plain meaning. At times, they even seem to be
a mere repetition—in a paraphrase or in another language—of the
relevant verses to the halakhic issue under discussion.40 This fact,

37
Urbach, "The Drasha."
38
See, for example, Herr, "Continuum," 53-54.
39
So too Schwartz, "Hillel," 337. See also M. D. Herr, "The Role of the Halacha
in the Shaping of Jewish History," Contemporary Thinking in Israel 1 (1973): 32-35.
40
See, for example, Yose ben Yoezer's halakhic testimony
(m. 'Ed. 8:4), which seems to be a mere translation into Aramaic of Num. 19:11:
("One who touches a corpse ... is unclean
for seven days"). See Rosenthal, 451-52 n. 15. Cf. Halivni, Midrash,
Mishnah, and Gemara, 27-30; J. M. Baumgarten, "The Pharisaic-Sadducean Controversies
about Purity and the Qumran Texts," JJS 31 (1980): 161.
118 ADIEL SGHREMER

which had been noted in previous scholarly discussions,41 indicates

not only that Scripture was not used as a ground for halakhic rul-
ing but also that once it came to be used for this purpose (much
later), it was used, at first, in a very simple and primitive manner.42
As has been frequently observed, a similar tendency characterizes
the halakhic writings of the Qumran sect: although the use of Scripture
to justify halakha is evident, the conclusions drawn from the bibli-
cal text can usually be regarded as a plain meaning of the verse.43
A self-conscious explication of the manner in which the biblical text
was interpreted in halakhic contexts—halakhic midrash—is rarely to
be found.44 This also indicates that the appeal to the written text of
the Torah was in its infancy at that time. Even what seemed to
many to be an example of highly developed halakhic midrash at

41
See Urbach, "The Drasha," 173 (= The World of the Sages, 57); Urbach, The
Halakhah, 96; Rosenthal, 448-55, esp. nn. 12-19, and the bibliogra-
phy cited there. The affinity with the literal meaning of Scripture is a feature that
characterizes, according to several scholars, the teachings of the School of Sharnmai.
See I. Knohl, "A Parasha Concerned with Accepting the Kingdom of Heaven,"
Tarbiz 53 (1983): 15 n. 19. The general resemblance between Shammaitic stands
and those of the 'ancient' (sectarian) halakha has been noted by many scholars too.
See Sussman, "History of Halakha," 72 n. 237, and the bibliography cited there.
42
See further below, p. 121.
43
See, for example, Kister, "Some Aspects of Qumranic Halakhah," 587: "The
Dead Sea sect interpreted the biblical text correctly . . . according to the plain mean-
ing of the verse"; 'Jubilees and the Qumran sect. . . adopt the approach implied
by the plain sense of the Torah" ("Some Aspects of Qumranic Halakhah," 580);
Qimron and Strugnell, DJD 10.133: "It seems that the sectarians strove to observe
the commandments in accordance with the literal sense of Scripture." Note, how-
ever, that I did not say "the plain meaning," but only "a plain meaning." By doing
so, I wish to avoid the difficulty of having to determine a biblical text's original
meaning. I am trying to show that the reading of Scripture at Qumran (and in
other early sources) is confined to the relevant biblical text under discussion, con-
trary to rabbinic midrash which, as is well known, brings all relevant verses into
the discussion. Cf. Fishbane, "Mikra at Qumran," 348-49.
44
See M. J. Bernstein, "Midrash Halakhah at Qumran? 11Q Temple 64:6-13 and
Deuteronomy 21:22-23," Gesher 7 (1979): 145—66; Bernstein, "Employment and
Interpretation of Scripture in 4QMMT," 34: "there is no comprehensive, or even
large-scale, treatment of legal exegetical methodology at Qumran"; A. Goldberg,
"The Early and Late Midrash," Tarbiz 50 (1981): 98-99 n. 16 (Hebrew); J. M.
Baumgarten, "Halivni's Midrash, Mishnah, and Gemara" JQR 77 (1986): 62: "The use
of hermeneutic rules . . . was apparently confined to rabbinic tradition. Thus, the
efforts of some scholars to find illustrations of in Qumran exegesis have
not been successful"; L. H. Schiffman, Reclaiming the Dead Sea Scrolls (Philadelphia:
Jewish Publication Society, 1994), 220: "Somewhat rare in the scrolls is a technique
of halakhic Midrash"; Fraade, "Midrash at Qumran," 59-79: "There is relatively
little legal midrash to be found at Qumran," 74; M. Kister, "A Common Heritage,"
105: "Most Qumranic interpretations of legal passages in the Pentateuch consist of
paraphrases."
 "[T]HE[Y] DID NOT READ IN THE SEALED BOOK" 119

Qumran, CD 5:7-11 (prohibition of marrying one's niece) is, in

fact, a simple straightforward argument derived from the general lin-
guistic sense of the biblical law:
("the precept of incest is written from the point of view of
males, but the same applies to women").45 How far this is from tan-
naitic midrash, as we know it, throughout the rabbinic literature!46

45
See Rosenthal, 453 n. 15. Cf. Herr, "Continuum," 53-54; Herr,
"Who Were the Baethusians?," in Proceedings of the Seventh World Congress of Jewish
Studies: Studies in the Talmud, Halacha and Midrash (Jerusalem: World Union of Jewish
Studies, 1981), 19.
46
See also Qimron and Strugnell, DJD 10.133: "This attitude of the sect can
also be seen in the halakhot themselves, with the rigid and consistent interpreta-
tions given in them to terms from the Torah, as compared to the more fluid and
more innovative rabbinic interpretations of these same terms." This is not merely
incidental, for if one adheres to the plain, literal meaning of a text, surely there is
no need to justify the conclusions drawn from it, which, it might be argued, are
not, in a sense, 'conclusions' at all. Only when deviating from the plain, literal
meaning of the biblical text does one need to explicate the method by which the
conclusion was drawn, in order to justify it. This is halakhic midrash. (I am indebted
to Dror Yinon for this often overlooked insight.) For that reason, it would be appro-
priate to avoid, as much as possible, using the term 'midrash' with respect to
Qumran halakhic material. Since, however, there is a certain ambiguity with the
use of the term 'midrash' in this context, it seems to me that a terminological
clarification is appropriate here.
Kister is undoubtedly correct, that "it is impossible to go back to the Torah with-
out some sort of biblical exegesis" ("Some Aspects of Qumranic Halakhah," 573),
and that "often . . . the sectarian law appears to derive from an interpretation of
Scripture" (Kister, "A Common Heritage," 105). This does not necessarily imply,
however, that any such interpretation and exegesis should be designated 'midrash';
the terms are not identical. It is true that if one takes 'midrash' to apply to any
reading of the biblical text (and thus to any kind of exegesis) and if one allows for
speculations regarding the methods by which the sect might have deduced from
Scripture its halakhic norms (this path was followed, most notably, by L. H. Schiffinan,
in his Sectarian Law in the Dead Sea Scrolls [Chico: Scholars Press, 1983]), then the
use of the term 'midrash' might seem adequate.
If, however, we view such speculations as problematic (see the important critical
review of Schiffman's book by C. Milikowsky, "Law at Qumran: A Critical Reaction
to Lawrence H. Schiffinan, Sectarian Law in the Dead Sea Scrolls: Courts, Testimony, and
the Penal Code" RevQ 12 [1986]: 237-49; Fraade, "Midrash at Qumran," 62; A. I.
Baumgarten's review of the Hebrew edition of Schiffman's book in Zion 58 [1993]:
510 n. 7 [Hebrew]), and if by the term 'midrash' we refer to a specific and unique
method of reading (which, as we know from rabbinic literature, is quite compli-
cated), then 'midrash' can hardly be found in Qumran halakhic literature. This fact
was admitted, after all, by Schiffinan himself (see the references in n. 44 above and
Rosenthal, ).
For similar reasons I would avoid using this term when describing attempts, by
the authors of later books of the Hebrew Bible, to interpret pentateuchal com-
mandments or to reconcile contradictory verses in the Torah. See Fishbane, Biblical
Interpretation, 134-37; I. L. Seeligmann, "The Beginnings of Midrash in the Book of
Chronicles," Tarbiz 49 (1980): 14-32 (= Studies in Biblical Literature [Jerusalem: Magnes
120 ADIEL SCHREMER

The absence of scriptural proof-texts from halakhic rulings attrib-

uted to authorities of the Second Temple era, on the one hand, and
the close correspondence between these halakhic rulings and Scripture,
on the other, indicate that the appeal to Scripture as a source for
guidance in halakhic matters was uncommon, at the beginning, and
very primitive. The following example will illustrate this assertion.
In a baraita preserved in the Tosefta, the Palestinian Talmud, and
the Babylonian Talmud, we find the following account:

Hillel the Elder expounded (2m) ordinary language. When the people
of Alexandria would betroth women, another man would come and
abduct her from the market, and the case came before the Sages, and
they wanted to declare (lit.: to make) their children bastards
Said Hillel to them: "Show me the marriage contracts of your
mothers." They showed him, and it was written in it: "When you
enter my house you shall become my wife according to the laws of
Moses and Israel," [so they (i.e., the Sages) did not declare their chil-
dren bastards].47

As Saul Lieberman noted,48 medieval commentaries on the Babylonian

Talmud were perplexed by this text. Taken at face value, it is difficult
to see what Hillel could have added to the explicit words of the
Alexandrians' marriage contracts, and therefore it is difficult to under-
stand why the baraita refers to it as a drashah. They took it for granted

Press, 19962], 454-74 [Hebrew]); D. W. Halivni, "Reflections of Classical Jewish

Hermeneutics," PAAJR 62 (1996): 21-22; D. W. Halivni, Revelation Restored: Divine
Writ and Critical Responses (Boulder: Westview, 1997), 22-26. Elsewhere I hope to
show that Sadducean and Baethesian halakha are closely related to the plain mean-
ing of Scripture, as it is traditionally taken to be (cf. Kister, "Some Aspects of
Qumranic Halakhah," 574); if this is proven correct, then, with respect to these
two groups as well, the use of the term 'midrash' should be avoided. Cf. Sussman,
"History of Halakha," 57 n. 185; D. Henshke, "The Sanctity of Jerusalem: The
Sages and Sectarian Halakhah" Tarbiz 67 (1997): 28 (Hebrew), and the bibliogra-
phy cited there in n. 88.
47
See t. Ket. 4:9 (ed. Lieberman, 68); j. Ket. 4:8, 28d (= j. Yeb. 15:3, 14d); b. B.
Mes. 104a. The concluding remark is found only in the Palestinian Talmud's ver-
sion, but it is implicit in the Tosefta.
48
See Lieberman, Tosefta Kifshutah, vol. 6 (New York: Jewish Theological Seminary
of America, 1967), 245-47.
 "[T]HE[Y] DID NOT READ IN THE SEALED BOOK" 121

that Hillel ('The Elder'!) made an original contribution to the under-

standing of the text under discussion, and so they refused to accept
the story at face value. This difficulty has produced several compli-
cated and forced explanations of the baraita in order to avoid leav-
ing the reader with the impression that Hillel did not make a significant
contribution.49
The text, however, is quite clear and very simple; it argues that
Hillel's innovation was his willingness to look at the written text of
the marriage contract and to rely upon it as a source to decide the
matter.50 In that early stage, this is precisely what is meant by the
term 'midrash.'51 Again we see that the very concept of the text as
an authority to which one may appeal in halakhic matters was rel-
atively new at that time.

49
This difficulty has perplexed modern scholars as well. See, for example, Kister,
202 n. 2; Ch. Albeck, "Betrothal and its Deeds," in Studies in
Memory of Moses Schorr, ed. L. Ginzberg and A. Weiss (New York: Hotsa'at Va'adat
Zikaron Mosheh Shorr, 1944), 16 (Hebrew); L. M. Epstein, "Notes on the Status
of the Jewish Woman," JQR n.s. 14 (1923-24): 497-98; A. Gulak, Das Urkundenwesen
im Talmud im Lichte der griechisch-aegyptischen Papyri und des griechischen und romischen Rechts
(Jerusalem: Rubin Mass, 1935), 37-38 (= Legal Documents in the Talmud in Light of
Greek Papyri and Greek and Roman Law, edited and supplemented by R. Katzoff
[Jerusalem: Magnes Press, 1994], 47). En passant, I would note that Gulak wanted
to emend the text and read ("and one from the market
would come and abduct her") but this is unnecessary; the text describes a well
known reality in Mediterranean societies. See J. Evans-Grubbs, "Abduction Marriage
in Antiquity: A Law of Constantine (CTh IX. 24. I) and Its Social Context," Journal
of Roman Studies 79 (1989): 59—83; J. Evans-Grubbs, Law and Family in Late Antiquity
(Oxford: Oxford University Press, 1995): 183-93.
50
See also Urbach, "The Drasha," 176-77, end of n. 35; A. I. Yadin, Imitatio
Scriptures: Torah and Hermeneutics in the Rabbi Ishmael Midrashim (Ph.D. dissertation;
Berkeley University, 1999), 150. This is implied in Hillel's response:
which indicates that the essence of Hillel's innovation was his very
willingness to use the written document to solve the halakhic difficulty. Cf. Kister,
202 n. 2.
51
Cf. Rashi, ad b. San. 52b, who writes of the Sadducees that they explicate
Scripture literally , i.e., they simply read the text
of the Torah and follow its literal meaning. On the development of the term
'midrash,' see J. Heineman, "The Development of the Technical Terminology for
the Interpretation of the Bible, PRS," Leshonenu 15 (1946): 182-89 (Hebrew); and,
most recently, A. Hurvitz, "Continuity and Innovation in Biblical Hebrew: The
Case of 'Semantic Change' in Post-Exilic Writings," in Studies in Ancient Hebrew
Semantics, ed. T. Muraoka, Abr-Nahrain Supplement Series 4 (Louvain: Peeters Press,
1995), 1-10.
122 ADIEL SCHREMER

Thus, the evidence indicates not only that Qumran's appeal to

Scripture should be seen as a reforming innovation but also that it
marks the beginning of this new fashion. Yet, the Dead Sea sect is
only our best-documented Jewish group of the Second Temple period,
and not necessarily the most important. One may therefore assume
that the fashion of 'returning to the text' was accepted by others,
too. Indeed, as Urbach noted, at approximately the same time we
find other separatists who demanded the founding of halakha exclu-
sively on Scripture.52 One of them was Judah ben Dorthai, about
whom we possess the following tannaitic tradition:

It was taught [in a tannaitic source]: Judah ben Dorthai departed

, he and Dorthai his son, and went and dwelt in the South. He
said: "If Elijah should come and say to them, to [the people of] Israel,
"Why did you not sacrifice the Haggiga on the Sabbath?," what will
they answer him?! I am astonished at the two great masters of our
generation, Shemma'aya and Avtalion, who are great masters and great
explicators , yet they have not told them, [the people of] Israel,
that the Haggiga offering overrides the Sabbath!" (b. Pes. 7 0b).

Urbach noted that this baraita shows that Judah's departure was
rooted in his willingness to draw halakhic guidance, in a matter
under dispute, from Scripture.53 This willingness, however, was not
shared by Shemmacaya and Avtalion, who refused, according to this
source, to rule on the basis of an exposition of Scripture. This fact
indicates that the procedure had not yet gained wide acceptance.
Moreover, it is possible that refusal, or at least hesitation, to base
halakhic decisions on the written words of Scripture is echoed in
other sources that refer to the late Second Temple period as well.54
Such reluctance continued to exist even later, most notably with the

52
See Urbach, "The Drasha," 175-76.
53
Urbach, "The Drasha." Cf. J. Tabory, "The Paschal Hagiga: Myth or Reality?,"
Tarbiz 64 (1994): 42-43 (esp. n. 13).
54
See Urbach, "The Drasha," 176-78. Urbach refers, inter alia, to the account of
the discussion between Hillel and the sons of Bathyra on the problem of whether the
Paschal sacrifice overrides the Sabbath (t. Pes. 4:13 [ed. Lieberman, 165];j. Pes. 6:1,
33a; b. Pes. 66a). He assumes that the phrase
 "[T]HE[Y] DID NOT READ IN THE SEALED BOOK" 123

most "traditionalist" of all the rabbis, Rabbi Eliezer ben Hyrcanus.55

All this leads to one and the same conclusion, as we have formulated
it: the appeal to the written text of the Torah as an authoritative
source for halakhic matters, and as a means by which one is able
to discuss halakhic questions, was a revolutionary innovation of first-
century BCE Judaism, and it was actually unknown prior to that era.56

("although he sat down

and explicated [Scripture] all day long they did not accept from him until he said
to them 'I swear, so I heard from Shemma'aya and Avtalion'"), found in the version
of the Palestinian Talmud, reflects "a principle refusal to the drasha as a base for
the halakha" (n. 35). However, not only this phrase is absent from the parallel (and
more primitive?) version of the Tosefta, but also a comparison with the Babylonian
version seems to indicate that the issue might be different—namely, the tension
between "remembrance" and knowledge, on the one hand, and scholastic abilities,
on the other hand. On this tension, which is fundamental to the rabbinic study
circles, see A. Schremer, "'He Posed Him a Difficulty and Placed Him': A Study
in the Evolution of the Text of TB Bam Kama 117a," Tarbiz 66 (1997): 415 n. 47.
50
On Rabbi Eliezer's conservative character, see Y. D. Gilat, R. Eliezer Ben
Hyrcanus: A Scholar Outcast (Ramat Gan: Bar-Ilan University Press, 1984); M. Fisch,
Rational Rabbis: Science and Talmudic Culture (Bloomington and Minneapolis: Indiana
University Press, 1997), 63-64.
56
The affinity of Sadducean halakha to Scripture (Josephus, Ant. 13.297; scholion
to Megillat Ta'anit, 4 of Tammuz [I hope to touch upon this issue in a forthcoming
study; see above, end of n. 46]) has led most scholars, starting with A. Geiger, Urschrift
und Ubersetzungen der Bible in ihrer Abhangigkeit von der innern Entwicklung des Judentums (Breslau:
Julius Hainauer, 1857), 134, to view the Sadducean halakha as a 'conservative' halakha,
as opposed to the more 'liberal' one of the Pharisees. Seen in that light, it was cus-
tomarily assumed that the Sadducean position was extremely conservative and faithful
to ancient halakha and that they preserved the ancient Israelite religious cult that per-
sisted from the time of the First Temple, through the Exile, until the late days of
the Second Temple era. See, for example: R. Meyer, "Saddoukaios," TDNT 7:50;
Schurer, History of the Jewish People, 411; Sussman, "History of Halakha," 65 n. 206,
69 n. 226; I. Knohl, "The Priestly Torah versus the Holiness School: Sabbath and
the Festivals," HUCA 58 (1987): 104-6; I. Knohl, "Post-Biblical Sectarianism and
the Priestly Schools of the Pentateuch: The Issue of Popular Participation in the
Temple Cult on Festivals," in The Madrid Qumran Congress, 607—9. Also on the antiq-
uity of several Sadducean (but also Pharisaic) halakhic positions, see A. Rofe, "The
Onset of Sects in Postexilic Judaism: Neglected Evidence from the Septuagint, Trito-
Isaiah, Ben Sira, and Malachi," in The Social World of Formative Christianity and Judaism:
Essays in Tribute to Howard Clark Kee, ed. J. Neusner et al. (Philadelphia: Fortress
Press, 1988), 39-49; S. Naeh, "Did the Tannaim Interpret the Script of the Torah
Differently from the Authorized Reading?," Tarbiz 61 (1992): 439 (Hebrew).
As I noted above, however, since text-based ideologies, as a rule, are of sec-
ondary and reformative character vis-a-vis the prevailing, 'tradition-based,' type of
religiosity, it might be argued that the Sadducean halakha is a revolutionary return
to the text, not a conservative preservation of ancient, biblical tradition. Here I find
myself in agreement with Goodman, "Note on Josephus, the Pharisees and Ancestral
Tradition," who writes, "the Pharisees were essentially conservative in behaviour,
and, incidentally, the Sadducean rejection of normal custom far more radical than
it is usually portrayed" (p. 18). Cf. A. I. Baumgarten, "The Pharisaic Paradosis"
63-77.
124 ADIEL SGHREMER

True, there had been instruction in Israel since biblical days and there
were occasions when the Torah was read and explained in public.57
But it was only in the last generations before Hillel that the learning
of the Torah became a principal force in Judaism: First, in the sec-
tarian movements and in the Diaspora, then, through Hillel, in Jerusalem
and in classical Judaism.58

VI

This new trend of appeal to the written text of the Torah in halakhic
contexts, however, had the potential of revealing that the common,
accepted, traditional way of observance is contradicted by the Torah,
and thus to threaten this tradition. The simple 'traditionalist' reply,
"This is how it is customary among us," could no longer suffice.
The following account of a conversation between R. Joshua and a
certain pious priest in Ramat Bnei Anat is illuminating in this context:

There was a case of a certain pious priest in Ramat Bnei Anat, and
R. Joshua went to speak with him, and they were discussing laws of
piety. When it was time for the meal he said to his wife: Go bring
us a drop of oil into the beans. She went and took the flask from the
stove. Said [R. Joshua] to him: Rabbi, is the stove clean? Said [the
pious priest] to him: Is there an unclean stove or an unclean oven [at
all]?! Said [R. Joshua] to him: But Scripture says "Oven, or ranges,
they shall be broken down, for they are unclean" (Lev. 11:35), so there
can be that an oven and a stove may be unclean! Said [the pious
priest]: Rabbi, this is how I used to do all my life. Said [R. Joshua]
to him: If this is how you used to do all your life, you have never
eaten sacramental food properly!59

57
See above, n. 29.
58
N. N. Glatzer, Hillel the Elder: The Emergence of Classical Judaism (New York:
Schocken, 1966), 55. See also Vermes, "Bible and Midrash," 80-81, and further
below, n. 62.
59
ARN, Version B, chap. 27 (ed. Schechter, 28b-29a). On this story see S. Safrai,
In Times of Temple and Mishnah: Studies in Jewish History, vol. 2 (Jerusalem: Magnes
Press, 1994), 510-11, 521-22.
 "[T]HE[Y] DID NOT READ IN THE SEALED BOOK" 125

The context in which this story is brought is the saying

("whoever does not serve the Sages is worthy of
death"). This is a variant reading of the saying in m. 'Ab. 1:13:
("whoever does not learn is worthy of death").60 When
conflated, this tradition demands not only serving the Sages but also
studying Torah. The pious priest is presented as an ignoramus who
has never learned Torah and therefore does not observe the law appro-
priately. His reply to R. Joshua's rebuke is the simple 'traditionalist'
argument: "This is the way I live." This reply, however, is imme-
diately rejected:
("Said [R. Joshua] to him: If this is how you used to do
all your life, you have never eaten sacramental food properly"). Thus,
the simple argument from tradition has lost its persuasive effect.
Under such circumstances, how would those who adhered to the
'tradition of the fathers' react in response to the attacks on that tra-
dition and the challenges put to it by 'book-oriented' Jews, whose
opinions had the prestige and weight of being based on the holy
words of God to Moses? One reply could have been that of some
of the Ashkenazic Jews of the eleventh century who dismissed the
'revealed book,' the Babylonian Talmud, as irrelevant and contin-
ued to adhere to their forefathers' traditions, assuming that such old
traditions could not have been so fixed unless they were, in fact,
ancient traditions that had been given to Moses himself at Sinai.61
But the Babylonian Talmud is one thing; the explicit words of the
Torah are another thing altogether and cannot easily be dismissed
in favor of any tradition. Therefore, those who adhered to 'the tra-
dition of the fathers' had to rise to the challenge and work hard in
order to show that their own traditions were also rooted in the bib-
lical text.62

60
On the complicated question of the relation between the text of ARN and the
Mishnah at that point, see M. Kister, Studies in Avot de-Rabbi Nathan: Text, Redaction
and Interpretation (Jerusalem: Yad Ben Zvi and the Hebrew University, 1998), 127
(Hebrew). It should be noted that the Mishnah provides a much better context for
our story (since it emphasizes learning, as the story does) than ARN, which stresses
the duty of serving the Sages.
61
See Ta-Shema, "Law, Custom, and Tradition," 85ff. Note that in the story
of R. Joshua and the pious priest, the latter does not try to argue that his custom
has deep roots in the ancient Jewish way of life. Such an argument would uproot
the fundamental objective of the story, of course, and therefore would not have
been put forward by the narrator.
62
See also J. N. Epstein, Introduction to Tannaitic Literature, 521. A possible consequence
of this conclusion is related to the much debated question regarding the nature of
halakhic midrash, whether it should be seen as creating halakha or essentially
126 ADIEL SGHREMER

The first century BCE revolution of 'returning to the text' among

various streams of Palestinian Jewry had a far-reaching consequence:
it was among the primary catalysts of the emergence of Torah study
among Pharisaic or, better, traditional circles in the late Second
Temple period.63 It would not be irrelevant to call attention to the
fact that the earliest attestation to the existence of the institution
dedicated to the study of Torah, the bet midrash, also dates only from
the late Second Temple period.64 Thus, paradoxically, rabbinic Judaism
may in large measure owe its prime value, and the existence of its
institutional platform, to its 'text-oriented' opponents, of whom the
most famous were the Dead Sea sect.

supporting existing practice. Although this is not the place to examine the issue in
detail, we may note that if the above conclusion is correct then one may say that
in its origins, the appeal to the written text of the Torah was 'creative' among sec-
tarian circles and 'supportive' of the prevalent practice in 'traditional' circles. In
later stages of development, however, it became standard to derive halakhic rulings
and concepts from Scripture, even in Pharisaic Judaism, and later, in rabbinic cir-
cles, too. Most of the sources adduced by Albeck, "The Halakhoth and the Derashoth,"
and others are related to this later stage.
63
I am aware of the chronological difficulty inherent in this proposal that can
be raised in this context. Because it is commonly assumed that the halakhic writ-
ings of the Dead Sea sect should be dated to somewhere in the second century
BCE, this dating leaves us with quite a long chronological gap between the 'begin-
nings' (in Qumran) and the 'response' (in Pharisaic circles). The dating, as well as
the provenance, of some of the major halakhic documents from Qumran, however,
are far from certain (see, for example: I. Knohl, "Re-considering the Dating and
Recipient of 'Miqsat Ma'ase ha-Torah,'" Hebrew Studies 37 [1996]: 119-25; Baum-
garten and Schwartz, "Damascus Document," 6-7). In any case, we may safely
assume that time was needed until the social-religious criticism of 'text-oriented'
Jews had enough impact to raise Pharisaic response. Moreover, if one accepts, with
Urbach ("The Drasha," 175-76), the historical reliability of the baraitha in b. Pes.
70b, it may be argued that the study of the Torah is evident already with Shemma'aya
and Avtalion, who are called ('great explicators'). This is a generation
earlier than Hillel, so the chronological gap is further reduced.
64
T. Suk. 2:10 (ed. Lieberman, 265), 4:5 (ed. Lieberman, 273), t. Hag. 2:9 (ed.
Lieberman, 383 [= t. San. 7:1, ed. Zuckermandel, 425]), and parallels. See L. I.
Levine, The Rabbinic Class of Roman Palestine in Late Antiquity (Jerusalem: Yad Ben
Zvi; New York: Jewish Theological Seminary of America, 1989), 26-29. The term
bet midrash in Sir. 51:23, which is frequently referred to in this context (see, for
example, I. Gafni, "Yeshiva and Metivtah," Zion 43 [1978]: 15-16), should be dis-
regarded, not only because the nature of the institution it describes is obscure, but
also, and foremost, because this whole chapter is a retroversion from Syriac and
therefore unreliable. See M. Kister, "A Contribution to the Interpretation of Ben
Sira," Tarbiz 59 (1990): 304 n. 2.